Judge Salvatore Sirna, Case Number: 24PSCV00097, Date: 2024-01-30 Tentative Ruling

Judge: Salvatore Sirna, Case: 24PSCV00097, Date: 2024-01-30 Tentative Ruling

Case Number: 24PSCV00097 Hearing Date: March 20, 2024 Dept: G

Plaintiffs Donald G. McWhirter, Jr. and Carolynn T. McWhirter’s Motion for Preliminary Injunction

Respondent: Defendant Anthony J. Venti, Jr.

TENTATIVE RULING

Plaintiffs Donald G. McWhirter, Jr. and Carolynn T. McWhirter’s Motion for Preliminary Injunction is DENIED. The Temporary Restraining Order issued by the court on February 7, 2024 is DISSOLVED. The bond posted by Plaintiffs is EXONERATED.

BACKGROUND

On January 9, 2024, Plaintiffs Donald G. McWhirter, Jr. and Carolynn T. McWhirter filed a complaint against Defendant Anthony J. Venti, Jr., individually and as trustee of the Venti, Jr. Family Trust, dated May 31, 1990 (Venti Trust), and Does 1-10, alleging the following causes of action: (1) quiet title, (2) declaratory relief, and (3) accounting.

On January 11, 2024, the McWhirters filed a motion for a preliminary injunction that the court denied on January 30.

On February 7, 2024, the court granted the McWhirters’ request for a temporary restraining order and set an OSC Re: Preliminary Injunction. A hearing on the OSC is set for March 20 with a case management conference set for June 13.

EVIDENTIARY OBJECTIONS

The McWhirters’ evidentiary objections to Venti’s declaration are OVERRULED as to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10.

ANALYSIS

The McWhirters seeks a preliminary injunction to halt the pending foreclosure of their personal residence. For the following reasons, the court DENIES their motion.

Legal Standard

“[A] court will deny a preliminary injunction unless there is a reasonable probability that the plaintiff will be successful on the merits, but the granting of a preliminary injunction does not amount to an adjudication of the merits.” (Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858, 866.) “The function of a preliminary injunction is the preservation of the status quo until a final determination of the merits.” (Ibid.)

In evaluating a party’s request for a preliminary injunction, courts consider “(1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction.” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) “[T]he greater the . . . showing on one, the less must be shown on the other to support an injunction.” (Ibid, quoting Butt v. State of California (1992) 4 Cal.4th 668, 678.) The balancing of harm between the parties also “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.” (Husain v. McDonald’s Corp. (2012) 205 Cal.App.4th 860, 867, quoting Abrams v. St. John’s Hospital & health Center (1994) 25 Cal.App.4th 628, 636.)¿The burden of proof is on the plaintiff as the moving party “to show all elements necessary to support issuance of a preliminary injunction.” (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)

Discussion

In this case, the McWhirters are seeking to quiet the title to their property in Glendora on the grounds that a deed of trust recorded against the Glendora property by Venti on February 18, 2009, is invalid. They allege the 2009 deed of trust is invalid because Venti failed to lend the funds required pursuant to the deed of trust.

In interpreting a deed of trust, courts follow the rules for interpreting contracts. (See Pacific States Savings & Loan Co. v. Hollywood Knickerbocker (1935) 11 Cal.App.2d 56, 62.) These rules include the “cardinal rule that the whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable; each clause helping to interpret the other.” (Ibid.) Courts also construe the contract in accordance with the “clear intention of the parties.” (Ibid.) “The proper interpretation of a contract is disputable if the contract is susceptible of more than one reasonable interpretation, that is, if the contract is ambiguous. An ambiguity may appear on the face of a contract, or extrinsic evidence may reveal a latent ambiguity. [Citation.] A court determining whether a contract is ambiguous must first consider extrinsic evidence offered to prove the parties' mutual intention. If the court determines that the contract is reasonably susceptible of an interpretation supported by extrinsic evidence, the court must admit that evidence for purposes of interpreting the contract.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.) When the language of a deed of trust is ambiguous, it should be construed in favor of the beneficiary so as to protect the validity of the security interest. (See Nineteenth Realty Co. v. Diggs (1933) 134 Cal.App. 278, 285.)

Here, the 2009 deed of trust states it is made “in consideration of the sum lent to the Trustor by the Beneficiary, in the amount of $300,000.00 U.S. DOLLARS (the ‘Principal Amount’) the receipt of which the Trustor does hereby acknowledges itself indebted.” (McWhirter Decl., Ex. B, p. 9.) But the parties dispute whether this deed of trust was intended to secure a loan to be made or prior debts that the McWhirters already allegedly owed. In a declaration, Donald McWhirter states the McWhirters executed the 2009 deed of trust based upon Venti’s representation that Venti would loan $300,000 to the McWhirters. (McWhirter Decl., ¶ 10.) In response, Venti denies promising to make any loan of $300,000 to the McWhirters. (Venti Decl., ¶ 3.) Instead, Venti claims the purpose of the deed of trust was to settle existing debts or obligations that the McWhirters owed. (Venti Decl., ¶ 2, 4, 12.)

As an initial matter, the court notes the plain language of the 2009 deed of trust does not support the McWhirters’ interpretation. While they claim the deed of trust was executed in consideration of Venti’s promise to loan them $300,000, the deed of trust itself refers to the loaned funds in the past tense by stating it was in consideration “of the sum lent to the Trustor” and that Trustor “acknowledges itself indebted.” (McWhirter Decl., Ex. B, p. 9 (emphasis added).) Furthermore, the extrinsic evidence provided also contradicts the McWhirters’ interpretation. The McWhirters and Venti both agree that Venti did not loan any funds after the execution of the 2009 deed of trust. (McWhirter Decl., ¶ 11; Venti Decl., ¶ 3.)

But in subsequent email correspondence between Donald McWhirter and Venti in February 2010, McWhirter acknowledges debt owed pursuant to the 2009 deed of trust. In an email to Venti, Donald McWhirter asked Venti not to release the “300K lien” as it was “our only avenue to get you paid back.” (Venti Decl., Ex. 2.) After Venti responded to Donald McWhirter’s email by expressing doubts about there being sufficient equity in the McWhirters’ property, Donald McWhirter replied with the following:

“Tony, between you and I, Far East has confirmed to NOT go after us once we are discharged from Bankruptcy, I will send you over the documents, hopefully letting us sell the house and to do the right thing by you. We should be able to get 1.2 million for the house, tile first is 890,000, second of 34,000 and unpaid taxes are only 5,000, which should give us money to pay you back. As well as you being the agent for the sale.

Don.” (Venti Decl., Ex. 3 (emphasis added).)

Because Venti did not loan any funds after the execution of the 2009 deed of trust, Donald McWhirter’s subsequent promises a year later to satisfy the obligations of the 2009 deed of trust establish that its purpose was to secure existing debt or obligations. The court determines there is no logical reason for Donald McWhirter to promise to satisfy a loan that was never made. Based on the evidence presented to the court, the court finds there is no likelihood that the McWhirters will be able to prevail on their claim that the 2009 deed of trust is invalid because Venti failed to make a required loan.

“A trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff will ultimately prevail on the merits of the claim.” (Aiuto v. City and County of San Francisco (2011) 201 Cal.App.4th 1347, 1361.) Accordingly, the court DENIES the McWhirters’ request for a preliminary injunction.

CONCLUSION

Based on the foregoing, the McWhirters’ motion for a preliminary injunction is DENIED. The Temporary Restraining Order issued by the court on February 7, 2024 is DISSOLVED. The bond posted by Plaintiffs is EXONERATED.